INDIGENOUS KNOWLEDGE & GOVERNANCE RECOVERY

Tuesday, March 18, 2008

In the Rio Grande Valley, the U.S. Department of Homeland Security sued dozens of individuals, local governments and agencies for refusing to grant it "access" to their land so it can take it for the border wall. After refusing access to her 3-acre plot, Eloisa Tamez was sued. She countersued and a federal judge has ordered DHS to negotiate with her in good faith.

Hundreds of miles north, in one of the Hill Country's most pristine ranches, Martha, Mary and Bebe Fenstermaker are girding for their fifth legal battle since 1989 to keep their land.

The city, Bexar County and the San Antonio River Authority want it for a dam to control flooding downstream by flooding the sisters' modest home sites, and much of the rest of their ranch, a federally registered historic district dotted with 19th-century limestone structures.

More Coverage

• Judge plans to rule quickly on border fence brouhaha

Then, there are the thousands who have found all or parts of their farms and ranches under thick lines on Texas Department of Transportation maps. TxDOT wants their land for the Trans-Texas Corridor, which will take as many as 8,000 miles of land in 1,200-foot-wide swathes for privately operated utility easements, multi-lane toll roads and railroad tracks.

These are just a few of the reasons "eminent domain" is appearing more often in Texas news reports. And as we get more Texans — but not more land — expect to hear more about governments using eminent domain to fix earlier mistakes — and for less noble purposes.

Governments' seizure powers predate our nation. Based on the notion that the sovereign owns all its territory and landholders own only an interest in the land's use, Common Law empowered monarchs to take whatever they wanted.

When America's colonies gained independence, they assumed eminent domain powers by proclaiming themselves the new sovereigns. In 1791, the U.S. Constitution was amended and eminent domain was implicitly recognized — but also limited — in the Fifth Amendment, which states, "nor shall private property be taken for public use without just compensation."

By 1829, however, the U.S. Supreme Court redefined "public good" by allowing states to empower private railroads to seize land. By 1954, this relaxation led the high court to let the District of Columbia take properties that were not blighted along with others nearby that were and hand them all to private parties for profitable redevelopment.

And in 2005, the court allowed New London, Conn., to seize a totally unblighted neighborhood and sell it to a private developer for a project city fathers believe will bring the city greater tax revenues.

Other eminent domain issues that are emerging involve local jurisdictions that, increasingly, are using eminent domain to provide infrastructure improvements — such as new schools, wider roads and drainage projects — that have been made necessary by uncontrolled development and low impact fees.

While the courts have, on the one hand, given governments greater latitude to use eminent domain to help private developers, they have also held that at times, "just compensation" is also due when governments' actions diminish the value of land that has not been seized by, for example, making it less desirable or less accessible.

In 2007, the Texas Legislature addressed this very issue with HB 2006, which allowed landowners to sue for "diminished access" to their property, instead of having to show "material and substantial damages" before seeking compensation. It passed but Gov. Rick Perry vetoed it.

As growing populations make land-use restrictions more necessary, we are going to face more policy questions that will revolve around eminent domain.

It is clearly time for Congress and the Legislature to rewrite laws to assure that eminent domain powers truly serve the public good — and aren't just used to fatten private wallets.

Lipan Apache Women Defense (LAW-Defense) is an Indigenous Peoples' Organization. It supports local capacity building, documentation, research, and investigations related to Indigenous peoples' rights affirmed in the U.N. Declaration on the Rights of Indigenous Peoples, ratified in 2007, and adopted by the United States on December 16, 2010.

LAW-Defense documents and advocates for the rights of the indigenous originarios, Nde', and Nakaiiye-Nde lineal clan members of Lipan Apache peoples who are the Real People: original rancheria communities along the Rio Grande/Rio Bravo.

Context:Lipan Apache women of El Calaboz Rancheria took up the cultural, social, legal, political, and economic protection against armed and forced dispossession of Indigenous Peoples' lands by the U.S. D.H.S. et al.

We organized community support, empowerment and decision-making processes to protect integral and inherent Indigenous relationships to lands, sacred sites, burial grounds, and biodiversity in the face of a series of armed and forced takings of local peoples' lands, as a direct consequence of the implementation of the U.S. Secure Fence Act of 2006.

Indigenous peoples from the El Calaboz Rancheria lineal clans stood firm against the U.S. possession of traditional lands. Securing our lands, resources, livelihoods, ecologically-based economies, and way of life are at the heart of the matter for Indigenous Peoples of the Lower Rio Grande, who continue to struggle against settler and state violence stemming from colonization by Spaniards in the early 1520s, and subsequent waves of settlement, development, and privatization by Euro-American colonizers.

The United Statesand Nde' Customary PerspectivesIn U.S. law, there are significant legal fictions which assume the religious and racial superiority of Euro-American settler juridical systems above those of indigenous peoples inherent and inalienable rights to self-governance, lands and territories. The following models entail excessive aggression and armed violence, which were used to dispossess lands illegally through force and coercion against Lower Rio Grande River communities:1. Eminent Domain, 2. the Declaration of Taking, and 3. Condemnation Proceedings. Impacted Nde' and Nnee Peoples of the Texas-Mexico Border--Beyond the Doctrine of DiscoverySpecifically impacted Indigenous people, the Lipan Apache, Jumano-Apache, and Mexican-American land grant peoples whose ancestors' presence in the hemisphere pre-date European conquest.

The Lipan Apache Women Defense organizedlegal, social, cultural and political resistance to U.S. militarized violence, abuse of state power, and abuse of the Rule of Law

This work raises critical questions and organizes forums for serious debate, participation and collective decision-making about Indigenous inherent Aboriginal Title, and the State's sovereignty.To date, the U.S. border wall project has been unsuccessful in El Calaboz Rancheria, Lower Rio Grande Valley, South Texas because it has not achieved its goal: genocide and erasure of Indigenous peoples, presence, history, creativity, and resilient spirit.

By foregrounding community organization, documentation, research and education the Lipan Apache Women Defense has strengthened the Indigenous People's resolve to persist in Indigenous, U.S. and International law systems to restore democratic principles and rule.

PLEASE SUPPORT OUR EFFORT to PROTECT INDIGENOUS LAND RIGHTS ALONG THE BORDER AND BORDER WALL. (FEBRUARY 2012)

Contested Rights--"Independent Indians" between the State and U.S. Development and Expansion (Map permission: Dr. Brian DeLay, Historian, in "Independent Indians and the U.S. Mexico War", The American Historical Review.